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2002 DIGILAW 126 (KER)

A. D. Thressiamma v. State of Kerala

2002-02-20

K.A.MOHAMMED SHAFI, K.S.RADHAKRISHNAN

body2002
Judgment :- Radhakrishnan, J. This appeal is preferred against the order in O.A. No. 107/90 of Forest Tribunal, Palakkad. Application was preferred under Section 8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 for declaration that the land in question is not private forest vested in the Government. Exemption was also sought for under Section 3(2) of the Act. 2. Applicant submitted that the property in question was taken on oral lease by her husband in the year 1963 from Chembra Peak Company and was brought under seasonal cultivation like ginger, tapioca, plantation etc. prior to the appointed date. In the year 1978 husband had assigned the land to her as per document No. 3918/78 and the property was under continued cultivation. She had also obtained Pattayam from the Land Tribunal, Kalpetta in S.M.C. No.114/80. Registration from the Rubber Board was also obtained in 1985. When forest official obstructed she approached the Forest Tribunal for the aforesaid reliefs. 3. Application was resisted by the Department. Plea of oral lease was rejected. Document executed between the husband and the applicant according to the department is a sham document and reliance placed on the purchase certificate was resisted. It was stated that the property formed part of a vested forest extending to 188 hectares which previously belonged to Chembra Peak Estate. Property was surveyed and demarcated and was included as item No.73 and notified as per D. 5272/77 dated 8-7-1977 by the custodian of vested forests. Further it was stated that the property was never under cultivation and no cultivation was effected prior to 10-5-1971. 4. The Forest Tribunal after examining the documentary and oral evidence rejected the application holding that she had not established the claim. The application was also submitted out of time. On merits also it was found that the applicant had not established the claim for exemption. With regard to claim raised on the purchase certificate the Forest Tribunal held as follows: "Our High Court has time and again held that a certificate of purchase issued under Section 72K of the K.L.R. Act without impleading the Forest Department is not valid and binding on the respondents in a petition filed under Section 8 of Act 26/71. 5. When the matter came up for hearing we heard counsel for the applicant as well as learned Government Pleader. 5. When the matter came up for hearing we heard counsel for the applicant as well as learned Government Pleader. Counsel submitted the Forest Tribunal had committed an error in holding the application preferred by her was out of time. Counsel submitted since no notification was issued under the Act the applicant could file this application either within 60 days from 6-8-81 or from 60 days from the date of notification. Counsel submitted application was well within time and should not have been rejected in limine. Counsel also submitted that appellant had got valid title over the property in question. Reference was also made to the purchase certificate issued by the Land Tribunal which according to the counsel is conclusive and the State and the Forest Department is bound by the orders issued by the Land Tribunal. Reference was also made to the decision of this Court in MFA. 160/91 reported in 2002 (1) KLT short Note 4 - Muhammed Basheer v. State of Kerala . 6. Learned Government pleader could not establish that notification was actually published. Since no gazette notification was produced we are inclined to take the view that the application preferred by her is maintainable and filed within time. Evidently the applicant is tracing her title on oral lease taken by her husband from the Chembra Peak Company in the year 1963. Further also refers to A1 dated 19-12-1978 executed by her husband in her favour. Applicant never got herself examined, instead her husband was examined as PW1. We find ourselves to place reliance on any oral lease set up by the husband as well as document executed between the husband and wife. Applicant could not produce any valid title deed in respect of the property in question. We have also gone through the evidence. Apart from the interested testimony of her husband no independent evidence was adduced to show that the property was under their cultivation prior to the appointed day. No commission was taken out to establish the character and nature of the property. In the absence of any independent evidence we cannot accept the contention of the petitioner that the property was under cultivation prior to 10-5-1971. 7. Counsel placed reliance on the purchase certificate issued by the Land Tribunal, Kalpetta in suo motu proceedings S.M.C. 114/80. Government or Forest Tribunal was not made a party to the said proceedings. In the absence of any independent evidence we cannot accept the contention of the petitioner that the property was under cultivation prior to 10-5-1971. 7. Counsel placed reliance on the purchase certificate issued by the Land Tribunal, Kalpetta in suo motu proceedings S.M.C. 114/80. Government or Forest Tribunal was not made a party to the said proceedings. We are of the view Forest Tribunal is not bound by the certificate issued by the Land Tribunal. Forest Tribunal is consisted under the Kerala Private Forest (Vesting and Assignment) Act. Tribunal itself could independently consider the nature and character of the property. Even if a pattayam was issued under K.L.R. Act in respect of private forest governed by M.P.P.F. Act or the Vesting Act that is not binding on the Forest Tribunal. This is the settled position of law. This Court as early as in the year 1987 in K.D. Mani v. State of Kerala, I.L.R. 1987 (1) Ker. 570 held that in a case where the party based his claim mainly on the purchase certificate he had obtained from the Land Tribunal to prove his possession of the land and his cultivation the certificate issued long after the appointed date as per Section 3(1) of Act 26 of 1971 in a proceeding initiated subsequent to the vesting without the junction of the Government in the proceedings cannot affect the right of the Government. A Division Bench of this Court in Ahamed & others v. State of Kerala another 1988(2) K.L.J. 756 held as follows: "The question which the Forest Tribunal has to decide is whether the applicant is a lessee or a person having right to possession and enjoyment of the forest land as on 10-5-1971, the appointed day. If the question of tenancy is determined by the Land Tribunal in a proceeding instituted before it under the provisions of the Kerala Land Reforms Act with the necessary parties on record the decision arrived at in such proceeding would be conclusive for the purpose of that Act. Chapter II - provision regarding tenancies - of Kerala Land Reforms Act, as amended does not apply to leases in respect of private forest except in the case of persons who were entitled to fixity of tenure immediately before the 21st January, 1961 under any law then in force or persons claiming under such persons, in view of S.3(1) (vii) of the Act. Therefore a determination by the Land Tribunal regarding the tenancies of Private Forests to which Chapter II of the Act does not apply cannot have any effect on proceedings under S. 8 of Act 26 of 1971 to decide whether an area is a private forest or not or whether the private forest has vested or not. If a finding is entered by the Land Tribunal about tenancy of private forest it shall have no effect on the exclusive jurisdiction of the Forest Tribunal to decide whether an area is a private forest or not or whether the private forest has vested in the State or not." Similar is the view taken by another Division Bench in Mani v. State of Kerala and another 1986 k.l.n. 29. Another Division Bench of this Court in State of Kerala and another v. C.J. Alexander, I.L.R. 1993(1) Kerala 731 dealt with an identical question and held as follows : "So, in the light of the Bench decision aforesaid, the certificate of purchase issued under the Kerala land Reforms Act will have no bearing on the right of the Government, in whom the land in question had vested under Section 3(1) of the Act as early as 10th May 1971. The fact that the appellants did not file an appeal against Ext. P1 (certificate of purchase) is of no consequence. The Forest Tribunal was in error in holding that Ext. P1 is binding on the appellants or that the failure to file an appeal against Ext. P1 has got any consequences. Ext. P1 will not bind the appellants." The above is the settled position of law. Purchase certificate issued by the Land Tribunal regarding the tenancies of private forests to which Chapter II of the K.L.R. Act does not apply cannot have any effect on proceedings under Section 8 of Vesting Act. In view of the settled position of law we are unable to subscribe to the view taken by Division Bench in M.F.A. 160/91. In that decision the Division Bench referred to the decision in Lakshmi v. Viswanathan, 1999 (2) K.L.T. 621. That is a matter concerning K.L.R. Act. So also the decision of the Apex Court in Ahammed Kutty v. Mariakutty Umma, 2000(1) K.L.T. 829. The decisions referred to by us in the earlier portion of the judgment were not brought to the knowledge of the learned Judges. 8. That is a matter concerning K.L.R. Act. So also the decision of the Apex Court in Ahammed Kutty v. Mariakutty Umma, 2000(1) K.L.T. 829. The decisions referred to by us in the earlier portion of the judgment were not brought to the knowledge of the learned Judges. 8. We are of the view the conclusiveness given to a purchase certificate with regard to the rights and liabilities under the K.L.R. Act is not binding of the Forest Tribunal governed by the Kerala Forest (Vesting and Assignment) Act and the State or the Forest Department is not expected to challenge the orders passed by the Land Tribunal without them in the junction of parties and to get them set aside. State or Forest Department is not bound by those orders when a dispute is raised under section 8 of the Vesting Act 1971 and rights are adjudicated. In view of the settled position we find no reason to refer the matter to Larger Bench especially this appeal is of the year 1991. Learned Government Pleader submitted that he is filing a review petition, with which we express no opinion. We reiterate the applicant could not establish, the land in question is not a private forest and not vested in the State. Claim for exemption under Section 3(2) also could not be established. In view of the above circumstance this appeal is dismissed.